On October 10, 2012, the Colorado Springsbased United States Anti-Doping Agency (USADA) released a 200-page “Reasoned Decision” (with 1000 pages of additional evidentiary material) supporting its conclusion that cyclist Lance Armstrong doped to win seven Tour de France titles from 1999 through 2005 and while competing in the 2009 and 2010 Tours.
The USADA “found proof beyond a reasonable doubt that Lance Armstrong engaged in serial cheating through the use, administration and traffi cking of performance-enhancing drugs and methods, and that Armstrong participated in running the U.S. Postal Service [cycling] Team as a doping conspiracy.” Illegal methods included use of artifi cial testosterone, cortisone, Human Growth Hormone, the blood booster Erythropoietin (EPO) and blood transfusions. The Reasoned Decision provides the justifi cation for USADA’s proposed lifetime ban of Armstrong from all sanctioned competitions and the stripping of all Armstrong’s competitive results for the past 14 years, including the seven Tour de France titles.
The document paints Armstrong as a bully and calculating liar who coerced young riders to join in the doping conspiracy and then, for more than a decade, engaged in perjury, retaliation and witness intimidation to avoid discovery. The Decision explicitly fi nds that Armstrong attempted to “subvert the judicial system and procure false testimony.” Damning evidence includes affi davits from 11 former Armstrong teammates who admit to having doped with the encouragement of Armstrong’s team management. The testimony is corroborated by analysis of Armstrong’s 2009- 2010 blood test results. There was a less than “one-in-a-million” possibility that those results could have been the result of natural processes.
The USADA Decision is the latest chapter of a public legal battle that began nearly four months ago when the USADA fi rst charged cancer survivor Armstrong with doping offenses. The entire dispute has strong Colorado links. Five of Armstrong’s former teammates who provided sworn testimony against Armstrong recently competed in Colorado’s USA Pro Challenge bicycle race, which included stages up Boulder’s Flagstaff Mountain and through downtown Denver. Riders who implicated Armstrong while admitting to their own doping history included Armstrong’s best friend, George Hincapie; 2012 USA Pro Challenge winner Christian VandeVelde; Aspen stage winner and Fort Lewis College alumni Tom Danielson; 2012 Pro Challenge thirdplace fi nisher and 2011 winner Levi Leipheimer; and former U.S. time trial champion David Zabriskie. Also confessing to having doped with Armstrong while competing in the Tour de France was former rider and Denver native Jonathan Vaughters. Vaughters is the general manager of the Boulder-based Garmin-Sharp bicycle team, a successful Tour de France team which takes a strong public anti-doping stance.
The USADA is represented by Bryan Cave HRO attorneys Richard Young and Brent Rychener, who authored the Reasoned Decision along with USADA chief Travis Tygart and in-house lawyers from the USADA. Young and Rychener became targets themselves of Armstrong’s legal and public relations team.
On October 9, Armstrong attorney Timothy Herman released a preemptive letter attempting to take the sting from the anticipated report. Herman predicted that the “Reasoned Decision” would be a “farce,” written with “signifi cant assistance of lawyers from one of Big Tobacco’s favorite law fi rms at a time when Lance Armstrong is one of America’s leading anti-tobacco advocates.”
The reference is to Bryan Cave HRO. Last year, St. Louis-based Bryan Cave combined with Denver-based Holme Roberts & Owen to form Bryan Cave HRO. Rychner, of Bryan Cave HRO’s Colorado Springs offi ce, dismissed the implication that he had an anti-Armstrong bias because of Armstrong’s efforts to raise cancer awareness. Rychner stated that neither he, nor Richard Young, as long-time Holme Roberts attorneys before the Bryan Cave combination, had ever represented a tobacco company.
Professional cycling, especially at the level of the Tour de France, is almost a pure endurance sport. In the grand tours, like the Tour de France or the tours of Spain and Italy, riders race for 20 days (called “stages”) over a three-week period, riding more than 100 miles a day at speeds from 15 to 50 miles per hour. It is grueling and borders on inhumane, akin to running 20 marathons in three weeks. In this environment, there are demonstrable benefi ts from using illegal performance-enhancing techniques. Corticosteroids or synthetic testosterone can aid the depleted body in recovery. Artifi cial EPO boosts the production of red blood cells, increasing the body’s ability to process oxygen and produce energy. An illegal transfusion of concentrated red blood cells has the same effect – increasing the number of oxygen-processing blood cells with the effect of increasing performance.
The benefi ts from using illegal performanceenhancing drugs in professional cycling are so well-known and were so widely practiced that nearly every top cyclist from 1995 through 2005 has either admitted to or been implicated, one way or another, in doping.
The three winners of the Tour de France before Armstrong (Dane Bjarne Riis, German Jan Ullrich and Italian Marco Pantani) either admitted to or were banned for doping. The two winners after Armstrong, his former teammates American Floyd Landis and Spaniard Alberto Contador, have been sanctioned for doping, with both men being stripped of Tour titles.
In addition, nearly every rider who took second or third place behind Armstrong during his years on the Tour podium has been sanctioned or otherwise been implicated in doping. Even this year’s 2012 London Olympic road race gold medalist, Alexander Vinokourov, was tossed out of the 2007 Tour de France after testing positive for a blood transfusion and was suspended from competition for two years. Yet, Lance Armstrong has always maintained that he raced clean. According to Armstrong, he has been tested hundreds of times and passed every test.
The Genesis of the USADA’s Reasoned Decision
Armstrong’s public legal battle began on June 12, 2012, when the USADA sent Armstrong a charging letter implicating Armstrong, his cycling team manager and team doctors in a multi-year drug conspiracy. The USADA is an independent entity contracted by the United States Olympic Committee to conduct drug testing and results management for participants in sports covered by the Olympic movement. The charges were somewhat unusual because they relied not on any particular adverse analytical fi nding (such as a positive drug test) but on so-called nonanalytical fi ndings: testimony of unidentifi ed former teammates and others who are alleged to have observed Armstrong using banned performance-enhancing techniques.
Under the accepted protocol, on receipt of a charging letter, Armstrong could either accept the charges and proposed sanction or demand arbitration. Had Armstrong chosen arbitration, it would have forced the USADA to present its proof in a public forum and allowed Armstrong to cross-examine witnesses and test results. But instead of making this choice, on July 9, 2012, Armstrong’s legal team fi led a federal lawsuit in Austin, Texas, seeking emergency relief to enjoin the USADA’s disciplinary proceedings.
Armstrong’s federal suit challenged the constitutionality of the USADA’s procedures (with state action being implicated because of the USADA’s contract with the United States Olympic Committee and partial funding by the U.S. Government) and also alleged a personal vendetta against Armstrong by USADA Chief Travis Tygart. The suit questioned the enforceability of the mandatory arbitration provisions required under the USADA protocols.
A successful injunctive lawsuit would have stricken at the heart of the USADA’s comprehensive anti-doping enforcement program and threatened the effort to eliminate performance enhancing drugs from Olympic sports. Armstrong is unusual compared to most athletes charged with doping offenses in that he has an army of public supporters because of his widely publicized cancer-awareness charity work. Armstrong also has the fi nancial wherewithal to match the USADA’s resources and legal talent. Armstrong’s legal team consists of lawyers from the Austin, Texas, fi rm of Howrey Breen & Herman, and the Washington, D.C., fi rms of Patton Boggs and Williams & Connolly.
Armstrong’s Lawsuit is Twice Dismissed
Armstrong’s case began badly. Federal Judge Sam Sparks dismissed Armstrong’s initial 80- page complaint the day it was fi led for failing to satisfy Rule 8. Said Judge Sparks, “this Court is not inclined to indulge Armstrong’s desire for publicity, self-aggrandizement, or vilifi cation of Defendants, by sifting through 80 mostly unnecessary pages in search of a few kernels of factual material relevant to his claims.”
Granted leave to refi le, Armstrong’s counsel submitted a thinner version lacking the fi rst document’s rhetorical hyperbole. After an expedited briefi ng and a hearing on the amended complaint, on August 20, 2012, Judge Sparks denied Armstrong any relief and dismissed the case pursuant to Fed. R. Civ. Pro. 12(b)(1) for lack of jurisdiction and failure to exhaust administrative remedies. See Armstrong v. Tygart, 2012 WL 3569682 (W.D. Tex. 2012). Sparks ruled that Armstrong was bound by the mandatory arbitration provision of his professional cycling license as well as the federal statute governing Olympic sports.
That statute mandates arbitration for athlete disciplinary disputes. “Congress made clear choices to keep disputes regarding [athletic eligibility] out of the federal courts.”
The August dismissal order did contain criticism of the USADA and its procedures. Judge Sparks described an on-going jurisdictional dispute between the USADA and the UCI, the international body which governs the sport of cycling. The UCI had claimed that USADA lacked jurisdiction because the UCI had been the entity that had discovered the infractions based on an email from Armstrong teammate Floyd Landis. But the UCI had not taken any action against Armstrong.
Judge Sparks questioned the USADA’s “singleminded determination to arbitrate the charges against [Armstrong], in direct confl ict with the UCI’s equally evident desire not to proceed against him.” The Judge referenced an appearance of confl ict of interest on the part of the USADA which “creates doubt” whether Armstrong would receive fair consideration in an arbitration. Sparks also criticized the USADA’s charging document, declaring it “so vague and unhelpful it would not pass muster in any court in the United States.”
Sparks also questioned USADA’s decision to ignore the statute of limitations and charge for offenses dating back 14 years. The apparent lack of cooperation between the national and international cycling and anti-doping organizations was highlighted. Nevertheless, the opinion concludes, “if these bodies wish to damage the image of their sport through bitter infi ghting, they will have to do so without the involvement of the United States courts.”
With the dismissal of Armstrong’s federal lawsuit, he was given additional time to decide whether he would contest the charges and demand arbitration. Three of the individuals charged by the USADA, doctors Ferrari, Moral and trainer Jose Marti, made no effort to contest the charges and on July 10, 2012, were banned by the USADA for life from engaging in any sport which is a signatory to the World Anti-Doping Agency code. On July 13, 2012, it was announced that manager Bruyneel, one of Armstrong’s closest friends, had elected to contest the charges and proceed to formal arbitration. Armstrong, however, gave up.
On August 23, 2012, Armstrong’s lawyer Tim Herman wrote USADA counsel William Bock to say Armstrong would not be going to arbitration. Herman called the USADA’s action an “unauthorized, ultra vires disciplinary proceeding.” He instead called for the USADA to submit any information and evidence to the UCI for independent review and decision. Herman alleged that the USADA’s conduct has been “motivated more by politics and a desire for media attention than faithful adherence to USADA’s obligations.”
Herman claimed the USADA lacked authority to proceed and given the jurisdictional problems it would be “fundamentally unfair to put Mr. Armstrong through that costly and timeconsuming [arbitration] process.” Herman asserted that the “little evidence” that does exist is “tainted testimony procured improperly from witnesses trying to profi t at Mr. Armstrong’s expense and secured by improper coercion and promises to witnesses.” Herman ended his letter with a threat to sue the USADA if it were to make any public statement claiming without jurisdiction to sanction Armstrong or to falsely characterize his reasons for not requesting arbitration.
The USADA, per its protocol, treated Armstrong’s refusal to demand arbitration as a waiver of his right to contest the charges or the sanction laid out in USADA’s initial charging letter. Per the USADA’s rules, the charges now are deemed established. The USADA imposed the sanction: lifetime ineligibility and disqualifi cation of competitive results beginning August 1, 1998 (including disqualifi cation of all Tour de France titles).
The only basis for any appeal by Armstrong would be if he could demonstrate to the Court of Arbitration for Sport that he failed to receive notice of the opportunity to contest the action, an impossible standard for Armstrong under these circumstances.
USADA Sanction Extends Beyond Statute of Limitations
Article 17 of the World Anti-Doping code provides for an eight-year statute of limitations for doping offenses. If the USADA’s sanction were limited to the eight-year statute, Armstrong would retain at least fi ve of his Tour de France titles (1999-2003). However, in sanctioning Armstrong for conduct going back to 1998, the USADA relied on the American legal principle that the running of the statute of limitations is suspended when the person seeking to assert the statute of limitations defense has subverted the judicial process, such as by fraudulently concealing his wrongful conduct.
According to the USADA, it is entitled to apply United States law to decide whether Armstrong is entitled to rely on the statute of limitations. The USADA’s reliance on fraudulent concealment as the basis for ignoring the statute of limitations is not without controversy. The case USADA cites in the Reasoned Decision is Kansas City, Mo. v. Federal Pac. Elec. Co., 310 F.2d 271 (8th Cir. 1962). That very case makes clear that mere denial on the defendant’s part is not enough to toll the running of the statute of limitations. Instead, the accepted principle is that the limitation period begins to run from the time that the plaintiff, by the exercise of reasonable diligence, discovers or should have discovered the cause of action.
It seems implausible for the USADA to argue that it could not have learned of Armstrong’s doping practices before 2012 even with the exercise of reasonable diligence. Much of the supporting evidence cited in the Reasoned Decision, beyond the testimony of certain of Armstrong’s teammates, was publicly known (and denied by Armstrong) for years. Evidence that Armstrong’s 1999 Tour samples contained EPO residue was reported in 2005.
In 2006, Betsy Andreu (wife of rider Frankie Andreu) testifi ed in an arbitration proceeding about Armstrong’s hospital room admissions of the use of performance-enhancing drugs. In 2006, journalists David Walsh and Pierre Ballester outlined much of the circumstantial evidence of Armstrong’s doping in the book L.A. Confidentiel, published in French. In 2006, The New York Times reported that Frankie Andreu and an unnamed U.S. Postal rider (later revealed to be Vaughters) had admitted using EPO to help prepare for the 1999 Tour de France while on Armstrong’s team.
Under the fraudulent concealment doctrine, suspicion of wrongdoing requires a party to exercise due diligence in conducting further inquiry. The USADA Decision does not outline the due diligence that it exercised from 2006 on. Nevertheless, by refusing to contest the charges, Armstrong forfeited his ability to challenge the argument that the statute of limitations does not apply due to fraudulent concealment.
The UCI will issue its response to the USADA’s Reasoned Decision on Monday, October 22, 2012. The UCI itself could appeal the Decision, making the jurisdictional argument that it, and not the USADA, should have brought the case. The UCI could also dispute the USADA’s position on the statute of limitations. But, any appeal by the UCI likely would be severely criticized.
The USADA’s Reasoned Decision provides evidence that the UCI itself ignored evidence of extensive doping within the sport and specifi cally by Armstrong. Meanwhile, most of Armstrong’s endorsement sponsors have abandoned him. On October 17, 2012, Nike said it was terminating its relationship with Armstrong “due to seemingly insurmountable evidence that Lance Armstrong participated in doping and misled Nike for more than a decade.” A 2001 Nike advertisement had featured Armstrong saying, “What am I on? I’m on my bike, busting my ass six hours a day. What are you on?
This article first appeared in Law Week Colorado, Oct. 22, 2012.